Mabe v. Gille Mfg. Co.

• Citation: 271 S.W. 1023
• Decision Date: 09 February 1925
• Docket Number: No. 15219.,15219.
• Parties: MABE v. GILLE MFG. CO.
• Court: Missouri Court of Appeals

271 S.W. 1023

MABE v. GILLE MFG. CO.

No. 15219.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Susie May Mabe, a minor, by her next friend, George J. Mabe, against the Gille Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John D. Wendorff, of Kansas City, for appellant.

Louis It. Weiss and John E. Connors, both of Kansas City, for respondent.

ARNOLD, J.

This is an action for damages for personal injuries. Plaintiff is a married woman, and at the time of the alleged injury was 18 years of age. Defendant is a corporation engaged in the manufacture of tin cans and allied products, with its plant located at Kansas City, Mo.

Plaintiff entered the employ of defendant about three or four days; or a week, prior to the incurrence of the alleged. injury, and was put to work packing cans; that is to say, putting them in boxes, or similar duties in respect to the cans. On the morning of February 13, 1922, she was taken off the work at which she had been engaged and placed in the operation of what is known as a Waesk punch press, in connection with which her duties were to cut discs about 1% inches in diameter from cardboard about one foot in width, cut or torn from a spool or roll located on the left side of the punch machine.

The essential parts of the machine consist of a die, or piece of metal in which there is a round hole corresponding in diameter to that of the disc to be cut, bolted firmly on a bed plate, or table, in dimensions about 9 by 18½ inches. Into this hole a cylindrical plunger or punch descends from above by means of mechanical power fitting the hole in the die, so as to cut any object that might be placed over the hole or die. The movement of this plunger was controlled in its descent by means of a treadle, or trip, which set the machinery in motion, and caused the plunger to descend. The plunger, after performing the cut, without further control by the operator, ascended by the action of the machinery to a position above the die and there remained until the treadle again released the plunger, in a repetition of the operation. "

The method employed in the process was for the operator to place the cardboard at its extreme right and over the hole in the die, then release the treadle or trip which sets the machine in motion, causing the plunger to descend and then ascend to its former position, where it remains stationary. The operator then adjusts the cardboard to another position from left to right; the process being repeated as often as a disc was cut. The cut disc fell through a hole through the die, and there was no further action required of the operator or the machine to accomplish the removal of the completed disc.

It is in evidence that, when plaintiff was placed in charge of the machine, she was instructed briefly by the foreman as to its operation, and was warned that, if her hands or fingers came in contact with the die, she would be injured, and plaintiff testified that she was aware of the danger. The evidence further shows that it was not necessary for plaintiff to place her hands or fingers near the die in the operation of the machine; that the use of her hands was required only in adjusting the cardboard to the proper position each time a disc was cut; that the treadle was released by the foot, and mechanical power then operated the machine.

On the day plaintiff was put in charge of the machine, and had operated it for four or five hours, following the noon luncheon, she again took her place at the machine and started it in operation. In some way, unknown to plaintiff, her right hand came in contact with the plunger in its descent, and the second, third, and fourth fingers of her hand were mangled so that amputation was necessary, and plaintiff was left with only the thumb and first finger of that hand capable of any useful function.

The first amended petition alleges necessary formal matters, and the negligence charge is':

"That plaintiff was an inexperienced employee, which defendant knew, or by the exercise of ordinary care would, have known, and that it was defendant's duty to have warned her of the dangers connected with the use and operation of said cutting machine, and to have instructed her how to protect herself from injury while operating said machine, but defendment, wholly disregarding its duty to plaintiff, negligently failed to warn her of the dangers in connection with the use of said machine or to sufficiently instruct her in the operation of said machine and how to protect herself from injury.

"Plaintiff further alleges that said cutting machine or press was dangerous to persons employed about the same while engaged in their ordinary duties, which defendant knew or by the exercise of ordinary care could have known, and it was the duty of defendant to have equipped said cutting machine with a guard; that said machine could have been safely guarded, and that defendant negligently failed to equip said machine with a guard as provided by statute, or post a notice of its danger conspicuously; that said negligent acts and omissions by defendant, herein set forth, operated severally and concurrently in directly producing the injuries to plaintiff," etc.

The first amended answer specifically denies that George J. Mabe was legally appointed and qualified as next friend of plaintiff. This allegation in the answer is followed by a general denial. The answer also pleads contributory negligence and assumption of risk. Plaintiff replied to this answer by general denial. With the issues thus made, the cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $7,500. Motions for new trial and in arrest of judgment were unavailing, and defendant appeals.

The first point urged by appellant is that the court erred in not directing a finding for defendant for the reason that George J. Mabe was not legally appointed next friend to plaintiff.

The testimony shows that George J. Mabe was plaintiff's husband, having been married to her prior to the alleged injury. The steps incident to this appointment as next friend are set out in the record and consist (1) of a petition filed March 3, 1922, signed by Susie May Mabe, stating that she is a minor of the age of 18 years, that she was injured on February 13, 1922, in the plant of defendant, and that she desires to prosecute an action in damages against said defendant, on account of said injuries, and requests that her husband, George J. Mabe, be appointed next friend for said purpose; (2) consent in writing of George J. Mabe to act as next friend for the purposes indicated in the petition, and signed by George J. Mabe; (3) acknowledgment by George J. Mabe that he signed the consent in writing, sworn to on March 3, 1922, before a notary public in and for Jackson county, Mo.; (4) filing notation as of May term, 1922, Jackson county circuit court; and (5) the certificate of the clerk of the circuit court of Jackson county, Mo., as follows:

"I do hereby appoint George J. Mabe next friend of Susie May Mabe, to institute and prosecute suit against said Gille Manufacturing Company as by statute in such cases made and provided.

                              "W. H. Harper, Clerk
                              "By D. W. Parker, Deputy."
                

The answer denies that George J. Mabe Was, in fact, legally appointed next friend of plaintiff, thus putting the question in issue. It is insisted that, when alleged by petition and denied by answer, the appointment must be proved as is any other disputed material issue in the case. In support of the legality of said appointment, plaintiff introduced in evidence the proceedings above set out. It is the position of defendant that the consent in writing of next friend must either be acknowledged before the court or some proof of consent must be presented to and be acted upon by the court, and that the mere filing of what purports to be an affidavit sworn to before a notary public is not competent evidence, where consent to the appointment is specifically denied.

The statutes which control in this situation are sections 1165, 1166, 1167, R. S. 1919. Section 1165 provides that suits by infants may be commenced by guardian or curator, or by next friend appointed for him in such suit; section 1166, that the appointment of a next friend for an infant shall be made by the court in which the suit is intended to be brought, or by a judge or clerk thereof; and section 1167 provides:

"Such appointment shall be made on the petition in writing of such infant, if of the age of fourteen years, and the written consent of the person proposed to be next friend to such infant acknowledged before, or proved to the court or officer making the appointment."

Plaintiff declares the question was not properly raised by answer, but we think the question could have been properly raised either by demurrer or answer. Brewer v. Cary, 148 Mo. App. 193, 127 S. W. 685 . Jones v. Steele, 36 Mo. 325; Casler v. Chase, 160 Mo. 418, 60 S. W. 1040. Defendant seems to base his contention that the clerk is not authorized to make the appointment except in vacation upon the second annotation under section 1166, R. S. 1919, citing the case of Johnson v. Railway, 259 Mo. 534, 168 S. W. 713, as follows:

"The appointment in vacation by the clerk of a next friend for the minor plaintiff is preliminary to a suit about to be instituted."

In the Johnson Case, as in the case at bar, the appointment of a next friend was challenged because it was made by the clerk instead of the court, and it was argued the statute was unconstitutional because it delegated to the clerk judicial authority. The statute was upheld, and it was further held that the appointment of a next friend is only a preliminary matter, ministerial and not judicial in character. The appointment of a next friend is for the...